What is wrong with sex in authority relations? A study in law and social theory.

• Author: Schneebaum, Galia

TABLE OF CONTENTS INTRODUCTION I. THE PUZZLE UNDERLYING SAR OFFENSES A. Puzzling Statutes, Puzzling Cases 1. Medical Treatment and Therapy 2. Employment and Education B. Dissatisfying Theories 1. The Liberal Conceptualization 2. The Feminist Conceptualization II. RECONCEPTUALIZING SEXUAL ABUSE IN AUTHORITY RELATIONS A. The Nature of Authority B. Bureaucratic Authority 1. Bureaucracy and the Authority of Office 2. Doctors, Employers, and Teachers as Bureaucratic Authority Figures 3. Separate Spheres: The Bureaucratic Sphere and the Personal Sphere C. What Is Sexual Abuse in Authority Relations? 1. Revisiting the Tayeb Case 2. Charisma of the Office 3. What Is Wrong with Sex in Authority Relations III. NORMATIVE IMPLICATIONS A. Implications for the Type of Regulation B. Implications for the Doctrine CONCLUSION INTRODUCTION

Consider the cases of a psychologist who pressures his patient into sexual intercourse; a boss who makes persistent sexual propositions to his subordinate until she caves in; and a university professor who persuades his reluctant research student into having sex. In all of these cases, there is a clear sense of wrong. Less clear is an understanding of the nature of the wrong, since neither extortion, fraud, nor any other traditional form of nonconsent under criminal law is involved. This Article offers a new theory to explain such cases.

Criminalization of sexual contact in relationships between a person of authority and a person under his authority is a contemporary trend in many legal systems, including the United States, Israel, (1) Great Britain, (2) and Canada. (3) These offenses, which I refer to as Sex in Authority Relations (SAR) offenses, share a common element: they all proscribe sexual contact within a certain type of social relationship in which one side holds a position of power over the other. Notwithstanding this imbalance of power, SAR offenses do not require an element of force and prohibit seemingly consensual sexual relations. To be sure, certain SAR cases involve coercive threats by the authority figure--for example, a workplace supervisor who threatens to fire an employee if she refuses his sexual advances (4) or a high school principal who threatens to block a student's graduation if she fails to meet his sexual demands. (5) Other cases involve fraud--for example, a mental health therapist who falsely represents intercourse as part of therapy. (6) In all of these cases, traditional criminal law doctrines could view the sex as nonconsensual. (7) In many SAR cases, however, physical aggression is absent and the offender does not make coercive threats or represent fraudulent claims. Moreover, many SAR provisions disregard the question of victim consent or even specify that consent is not a defense. (8)

Thus, two important questions arise: If sex between a workplace supervisor and an employee or between a therapist and patient is consensual (or not nonconsensual), on what grounds are these cases criminalized? (9) Additionally, what justifies the prohibition, backed by severe criminal punishment, of a consensual sexual affair between mature (10) and competent partners? These are the fundamental questions hovering in the background of any contemporary analysis of SAR offenses and are the main questions pursued in this Article. (11)

At present, SAR laws fall within the jurisdiction of penal regulations-i.e., criminal offenses or wrongs. While the language of the legislation is clearly criminal, legal theory lacks a fitting explanation and a proper justification for SAR offenses. Existing scholarship and jurisprudence recognize the misfit between SAR and customary categories of nonconsent. (12) One common response, inspired by liberal thought, has been to cling to the language of nonconsent, using "coerced" consent when coercive measures were not used, (13) or "technical" (14) or ungenuine (15) consent when consent was nominally present. Another response, inspired by feminist thought, abandons the question of consent and describes SAR in terms of gender exploitation and abuse of power. (16)

This Article suggests that neither the liberal nor the feminist theory is best suited to explain SAR offenses, and that neither the language of nonconsent nor the notion of gender exploitation is adequate for expressing this new legal category. Rather, the key to understanding SAR offenses is the concept of abuse of authority. This idiom (or some variation of it, such as exploitation of authority) already appears in many SAR provisions. (17) However, current theories do not dwell on it, nor do they seriously consider authority or abuse of authority as the conceptual focal point of SAR offenses. This Article aims to fill this void. It draws on Max Weber's account of modern bureaucracy to show that SAR offenses engage a novel type of abuse of authority, achieved through the overstepping of bureaucratic power into personal relationships.

This Article proceeds as follows: Part I introduces SAR legislation and case law and describes the crime's contemporary conceptualization within legal theory. Part II offers a new conceptualization for SAR offenses, based on social theory of authority. It introduces a new term--charisma of the office--and demonstrates its power in analyzing and theorizing SAR legislation and case law. Finally, Part III outlines the normative implications of this proposed conceptualization. Most importantly, it notes that SAR should not be criminalized as a sex offense and a "true crime," but rather criminalized as a regulatory offense. The aim of SAR is neither to vindicate sexual autonomy nor to prevent sex discrimination, but rather to restrain bureaucratic power and to prevent its expansion into the intimate lives of individuals. Ultimately, the normative aim of the new conceptualization of SAR offenses is to circumscribe criminalization and critique the current expansionist tendencies of both liberal and feminist theory.

1. THE PUZZLE UNDERLYING SAR OFFENSES

   In what follows, I portray the emergence of SAR offenses in two legal systems (Israel and the United States), review existing theoretical justifications for these offenses, and point to the puzzle underlying SAR-namely, the lack of a fitting justification for the criminalization of seemingly consensual sexual contact. The case law and legislation I present do not provide an exhaustive survey of American and Israeli SAR legislation and case law, but rather a selection to serve as basis for the conceptual analysis hereafter. (18) Currently, Israeli and U.S. jurisdictions provide an excellent laboratory to conduct this inquiry, as both legal systems contemporarily enforce impressive bodies of law in this area. American jurisdictions have persistently increased the scope of SAR legislation, (19) and Israeli courts have written pioneering case law in this field (20) that is sure to inform theoretical and practical debates worldwide and serve any jurisdiction that either has adopted or is considering adopting SAR regulations.

   1. PUZZLING STATUTES, PUZZLING CASES

      1. Medical Treatment and Therapy

         A growing body of contemporary American legislation criminalizes sexual contact between patients and their doctors, psychologists, and other health care providers. According to an exhaustive study published in 1998, (21) at least sixteen American jurisdictions have introduced criminal prohibitions against sexual contact in medical treatment, (22) and at least twenty-two jurisdictions have included criminal prohibitions against sexual contact between mental health professionals and their patients. (23) Since some of these provisions use fraud or similar terms, (24) criminalization of sex in medical treatment could be perceived as a mere expansion of the traditional category of rape by fraud. (25) However, the current criminalization of doctor-patient sex extends far beyond the traditional "rape by fraud" cases. Conventional criminal law concepts no longer capture its essence.

         Texas's legislation, for example, uses an overarching category of "sex without consent" as its primary definition for sexual assault. This legislation identifies sexual relations with health care providers as nonconsensual in cases where "the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor." (26) Other jurisdictions specify a per se rule prohibiting sexual contact during therapy and do not require any additional elements such as fraud, coercion, or exploitation, as Texas does. The North Dakota code is illustrative of this point:

         Any person who is or who holds oneself out to be a therapist and who intentionally has sexual contact, as defined in section 12.1-20-02, with a patient or client during any treatment, consultation, interview, or examination is guilty of a class C felony. Consent by the complainant is not a defense under this section. (27) Israel has also adopted a criminal prohibition against sexual contact in therapy. (28) Yet even before the Knesset enacted legislation, (29) the Israeli Supreme Court had acknowledged the claim of sexual abuse in medical relations through expansive interpretations of the offense of rape. (30) The Tayeb case (31) is especially interesting for two reasons: first, because the Court expanded the rape offense beyond its traditional bounds, and second, because it illustrates the lack of an appropriate legal vocabulary or coherent justification for the criminalization of SAR.

         In Tayeb, a young female patient attended a Jerusalem clinic for physical therapy for her ankle. (32) The patient had three satisfactory sessions. (33) During her fourth visit, the therapist, Morris Tayeb, deviated from his regular treatment routine. He first asked the complainant if she suffered pain in her back or neck in addition to her ankle...